United States: Courts Consider "Airworthiness" Requirement And "As Is Where Is" Disclaimer

Marc L. Antonecchia is a Partner in our New York office.


  • There is a natural discord between an "as is where is" disclaimer and an "airworthiness" requirement in an aircraft purchase agreement.
  • Rules of construction will determine which party bears the risk of loss.

Courts continue to analyze the term "airworthy" and its implications. Recently, a District Court in the Western District of Tennessee weighed in on the scope of the term "airworthy" and its sometimes complicated relationship to an "as is where is" clause. The decision is now on appeal with the Sixth Circuit. (See Holland & Knight alert, "District Court Evaluates Express Warranty of 'Airworthiness,'" Nov. 5, 2014.)

In McMahan Jets, LLC v. Roadlink Transportation, Inc., __ F. Supp. 3d __, 2014 WL 7335322 (W.D. Tenn. Dec. 18, 2014), an aircraft buyer filed an action for, inter alia, a breach of contract arising out of the sale of a Cessna Citation corporate jet. While the aircraft was in service in the 1990s, the interior passenger space was reconfigured, replacing two chairs with a couch situated atop the aircraft's forward carry-through spar (a major structural component) on the floor of the passenger compartment. As part of the reconfiguration, holes were bored into the forward carry-through spar to accommodate the speaker system for the passenger compartment. Prior to the sale at issue, the aircraft had undergone several inspections that deemed the aircraft "airworthy."

The agreement provided that the aircraft would be delivered "as is where is" subject to a pre-purchase identification of "airworthy discrepancies." Under a "pre-purchase inspection" provision, the seller would do one of the following:

  • pay to have the airworthy discrepancies repaired at the seller's expense
  • reduce the purchase price to the purchaser's satisfaction
  • decline to pay the costs and terminate the agreement

In a separate provision, the agreement stated that the seller would deliver the aircraft "in airworthy condition prior to delivery and acceptance of the aircraft."

During the closing process, the purchaser conducted a "cursory" pre-purchase inspection and relied on the prior airworthiness determinations. Following delivery, the purchaser operated the aircraft for 22 months until an inspection revealed the holes in the aircraft's forward carry-through spar and the manufacturer determined that the aircraft was not airworthy. The purchaser's breach of contract claim asserted that the seller materially breached the agreement by failing to deliver the aircraft in airworthy condition and falsely represented that the aircraft was airworthy, structurally sound, safe and not unreasonably dangerous.

Tension Between Airworthiness Requirement and Disclaimers

The court recognized the potential for ambiguity based on the tension between the agreement's disclaimers and its airworthy condition requirement. The disclaimers signal to a purchaser that the seller makes no promises about the condition of the goods. The airworthy condition requirement does just the opposite and guarantees "a relatively high standard of quality." The issue is whether the delivery of the aircraft in "airworthy condition" was a condition precedent to the purchaser's acceptance of the aircraft. The court determined that the conditional language evidencing a condition precedent was present only in the pre-purchase inspection clause, whereas the requirement that the aircraft be delivered in airworthy condition appeared in a different section unaccompanied by conditional language and unrelated to any of the disclaimers.

At the same time, the court disagreed with the seller's assertion that on its face the term "airworthy condition" as used in the delivery condition meant satisfaction of any of the "airworthy discrepancies" noted during the buyer's pre-purchase inspection. The court explained it as follows:

The use of "airworthy" in the [pre-purchase inspection provision] merely signals that pre-purchase inspection is directed to uncovering and identifying the type of discrepancy that specifically goes to the plane's airworthy condition. If [the purchaser] had failed to notice that the aircraft had no wings, for example, it would be absurd to conclude that the aircraft still ought [to] be considered "airworthy" under the [a]greement despite lacking any capacity to fly.

The court cited prior cases that have analyzed the term "airworthiness" and stated that such precedent led the court to conclude that an agreement requiring "airworthiness" without explanation relies on the word's generally accepted meaning, not an agreement-specific one. The court concluded that there was no dispute as to whether the aircraft met objective criteria for airworthiness or that it could be safely operated as a result of the holes drilled in the carry-through spar.

Next the court considered "whether the airworthy condition requirement ought to be enforced at the expense of the disclaimers." The court found that the language in the "as is" clause and the separate airworthiness clause "strongly suggest" that the parties intended the pre-purchase inspection process to define the scope of the seller's delivery obligations. It pointed out that even the sentence actually containing the phrase "in airworthy condition" actually referenced the pre-purchase inspection: "Seller shall deliver Aircraft from the Pre-Purchase Inspection with all systems functioning normally ... and in Airworthy Condition." As a result, the court held that, based on numerous cross references, the pre-purchase inspection requirements were intended to "dovetail" with the disclaimers:

The effect of the interlocking provisions is to place the burden on [the purchaser] to identify airworthiness problems before accepting the aircraft ... It cannot be the case that this deliberate arrangement is to be overturned by the single use of the phrase "in airworthy condition."

Parties to Purchase Agreements Must Be Aware of Rules of Construction

Courts appear to routinely assign an objective definition to the term "airworthy." But this decision highlights that the term "airworthy" must be assessed in connection with the contract as a whole. The interplay between the term "airworthy" and an "as is where is" clause, which at face value are polar opposites, is a subjective inquiry dependent on the construct of the particular contract at issue. As recognized by the court, "the cardinal rule for interpretation of contracts is to ascertain the intention of the parties, and to give effect to that intention, consistent with legal principles." In this particular instance, the court determined that the purchaser waived the right to maintain a claim for breach of contract for airworthiness discrepancies following delivery:

To hold [the seller] to the words 'in airworthy condition' would fundamentally alter the allocation of risk established by the jointly operating pre-purchase inspection provisions and disclaimers. If the parties had intended [the seller] unconditionally to guarantee the aircraft's airworthy condition, there would have been no reason to contract for pre-purchase airworthiness inspection in such detail – or at all, for that matter, as [the purchaser] would have had no reason to worry about being forced to accept an unairworthy aircraft.

It is important to note that this decision, which appears to have arisen out of a case of first impression for this particular District Court, does not signal that an "as is where is" clause in some way supersedes or negates an "airworthiness" requirement. Indeed, as the court recognized, the central issue is whether "the grossly negligent seller" or "the nearly equally careless buyer" should bear the burden of an aircraft that was not airworthy at the time of the sale. Given that a court's inquiry will apply rules of construction to determine the parties' intent, both buyer and seller should beware.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions